On 22 October 2007, the Belgian State Gazette published a new leniency notice, updating the existing leniency notice adopted in 2004. This followed a public consultation process in September, which gave stakeholders an opportunity to comment on the proposed modifications. The new notice was adopted to bring the Belgian leniency programme in line with the European Competition Network’s model programme and to clarify several issues that had arisen under the 2004 programme.
The new notice should also be seen in the context of the Belgian Competition Authority's increased attention to cartel enforcement, which has been made possible by reducing the number of merger filings (through increased merger notification thresholds) and by several institutional and substantive reforms introduced by the 2006 Competition Act. The notice now has an explicit legal basis in the 2006 Competition Act.
There are three main changes. First, the conditions for obtaining full immunity are now similar to those applied at European Community level; that is, a company will have to supply information that will enable the Belgian Competition Authority to carry out a targeted inspection or be the first to submit information and evidence which enables the authority to establish an infringement. Companies applying for immunity from fines can now seek a marker in a first phase, which reserves the applicant's place in the queue. As under the old leniency notice, a leniency applicant who fails to comply with the full immunity conditions can benefit from a reduction of fines if it provides evidence with significant added value compared with the evidence the authority already possesses.
Second, the new notice further clarifies the practical modalities of submitting applications. Both written and oral leniency applications are admitted, provided they are accompanied by all available evidence. Although applications can be made in English, a French or Dutch translation must be submitted within two working days, unless otherwise agreed. Summary applications are possible when a company is applying for immunity to the European Commission (because it is particularly well-placed to deal with a case, in accordance with paragraphs 14 and 15 of the ECN Notice), but the applicant nevertheless considers that the Belgian Competition Authority might be well placed under the ECN Notice to act against the cartel.
Finally, the new notice clarifies the procedure following a leniency application. Once the competition prosecutor leading the case has investigated the application and evidence, the competition prosecutor general asks the Belgian Competition Council to adopt a leniency declaration. This request expresses a view as to whether the applicant is eligible for immunity or a reduction of fines. Applicants may submit observations within eight working days from the working day following the submission of the request. The competition prosecutor leading the investigation mentions in his final report whether the applicant has fulfilled the conditions during the entire procedure. When taking the decision on the merits, the Council will grant immunity from fines or a reduction of fines, according to the case, if these conditions have been respected. Since 2004, the Belgian Competition Authority has received about 20 leniency applications. However, the majority of these applications were part of a company's strategy to apply for leniency in numerous jurisdictions. The adoption of a clear, new leniency notice demonstrates the new dynamism of Belgian cartel enforcement and may lead to further whistle-blowing.